US-VISIT is also very limited in its coverage. Enrollment is required for those traveling on a regular visa and for nationals of the 27 countries in the Visa Waiver Program. The DHS has announced that it plans to require US-VISIT enrollment of legal permanent residents but it is not required of U.S. citizens or visa-exempt Canadians and Mexicans with border crossing cards. Therefore, US-VISIT is currently required of less than 10% of the approximately 440 million people who enter legally into the U.S. each year and that will go up to 28% when legal permanent residents begin to be enrolled as well.
Given these exemptions, it becomes very important to make sure that the Americans, Canadians and Mexicans who are exempt from US-VISIT are in fact who they say they are. Yet at land borders U.S. citizens may simply make an oral declaration of citizenship to enter. The inspector, using his or her judgment, may allow the person to enter if satisfied with the totality of information available or ask to see a passport or other proof of citizenship, such as a birth certificate. In 2004, I entered the U.S. from Canada as an automobile passenger. The driver told the inspector that we were U.S. citizens and I never spoke. The inspector did not ask the driver or me for proof of citizenship. Similarly a daring English-speaking illegal migrant (or foreign terrorist) could declare U.S. citizenship to avoid biometric enrollment in US-VISIT and hope not to be asked for proof of citizenship. In 2004, 12,404 individuals making false claims to U.S. citizenship were intercepted by inspectors when their claims were challenged. There are no available statistics for those, like the driver and myself, who entered with a declaration of U.S. citizenship that went unchallenged.
Recognizing this security loophole, the 9/11 Commission recommended ending the so-called “Western Hemisphere exemption” that allows U.S., Canadian and Mexican citizens to cross U.S. land borders without passports. Families of the 9/11 victims pressured Congress to enact these recommendations and the resulting Intelligence Reform and Terrorism Prevention Act of 2004 requires that everyone, including U.S. citizens, have a valid passport or other designated documentary proof of citizenship in order to enter the U.S. beginning January 1, 2008. Members of Congress, particularly from border states, began to argue against the passport requirement, contending that it would impose too great a burden on Americans who have been able to travel to Canada and Mexico without the cost of getting a passport; that the 74% of Americans who do not have a passport would choose not to travel to Canada and Mexico and millions of dollars of cross-border economic activity would be threatened. The Senate immigration reform bill delays implementation of this requirement until June 1, 2009. Senators Patrick Leahy and Ted Stevens also added similar provisions to spending bills for the Departments of Homeland Security and State, helping to insure the delay regardless of the outcome of immigration reform legislation.
Another problem is posed by the 811,000 U.S. passports that have been
reported to INTERPOL as lost or stolen.17 An English-speaking foreigner
could acquire one of these U.S. passports and have his picture inserted, then
show the passport’s outside cover while declaring U.S. citizenship at the
border. If demanded by the inspector to verify identity and citizenship, the
passport may, or may not, be detected as fraudulent. Although there were 12,599
fraudulent U.S. passports intercepted at ports of entry in 2004, the DHS
Inspector General concluded that those attempting to enter the United States
with stolen passports are usually admitted, that reports of stolen passports on
lookout systems made little difference, and that several blocks of stolen
passports have been linked to Al Qaeda.18 The House and Senate
immigration reform bills include increased penalties for passport fraud and
trafficking in passports.
Limitations and Alternatives
The combination of a complete, secure entry-exit system and a surveillance/patrol dispatch system could reduce flows of illegal migration and hinder the entry of terrorists. Despite their multi-billion dollar price tags, it is unlikely that US-VISIT and SBI will meet such expectations due to inherent limitations and constraints on full deployment.
As it currently exists, surveillance technology between ports of entry is difficult to maintain and easily circumvented. SBI is a risky proposition and, unless an agreement can be reached with Canada regarding visa requirements for Mexicans, it may have to be extended to include the U.S.-Canada border, which is almost four times longer than the border with Mexico in the South. At the same time, virtual fencing is irrelevant to almost half of illegal migrants who overstayed their visas. The entry-exit system designed to address this problem is only required of a small percentage of those who enter and implementing a secure exit data collection process is very difficult. Without a complete secure entry-exit system, a future virtual fence may be circumvented by travel document fraud and visa abuse.
Moreover, these systems, and their multi-billion dollar price tags, have
been justified by their use in counter-terrorism but, without complete
implementation, their utility in catching terrorists is similarly limited. DHS
has yet to announce that US-VISIT has stopped a single suspected terrorist from
entering the country at the border, although visa applications have been denied
by the State Department due to security watch list checks supported by
biometrics. Even when US-VISIT is fully developed and deployed, it is unlikely
to stop many terrorists. It is doubtful that “established terrorists” known to
intelligence agencies will willingly provide the biographical and biometric
data that may lead to their apprehension, while “potential terrorists” who have
no criminal record and minimal contacts with terrorist organizations will not
generate a hit on the watch lists that are checked by US-VISIT. As the mistakes
and risky behavior of some of the 9/11 hijackers indicate, terrorists, much
like other criminals, are not always that smart, and US-VISIT may succeed in
catching a few of the less competent. Ultimately, US-VISIT may deter some
terrorists and divert the more determined to potentially more risky crossings
between ports of entry. But it is unlikely to catch many terrorists